NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 29 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLIFTON HUTCHINS, Jr., No. 22-15036

Plaintiff-Appellant, D.C. No. 1:15-cv-01537-DAD-HBK v.

BILL LOCKYER; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Submitted March 28, 2023** San Francisco, California

Before: WALLACE, SILVERMAN, and N.R. SMITH, Circuit Judges.

Clifton Hutchins appeals pro se from the district court’s summary judgment

in favor of Defendant-Appellee Dr. A. Johal on Hutchins’s Eighth Amendment

claim for medical deliberate indifference. We review a summary judgment de

novo. Nunez v. Duncan, 591 F.3d 1217, 1222 (9th Cir. 2010). We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction under 28 U.S.C. § 1291, and we affirm.

The district court did not err in granting summary judgment to Dr. Johal on

Hutchins’s Eighth Amendment deliberate indifference claim. Dr. Johal was not

deliberately indifferent to Hutchins’s serious medical needs when Dr. Johal

prescribed non-opioid painkillers to treat Hutchins’s chronic pain. Dr. Johal

submitted undisputed expert testimony that non-opioid pain medication is preferred

for long-term pain treatment over opioid pain medication because of the addictive

nature of opioid medications. Hutchins’s disagreement with Dr. Johal about the

type of medication he should receive does not mean that Dr. Johal was deliberately

indifferent. Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012), overruled on

other grounds, Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc).

Hutchins failed to submit any rebuttal expert medical testimony, and his other

counterarguments are based on mischaracterization of the record or bare assertions

that cannot defeat summary judgment. Scott v. Harris, 550 U.S. 372, 380 (2007);

Soremekum v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).

Because we hold that Dr. Johal was not deliberately indifferent to Hutchins’s

serious medical need, we need not consider if Dr. Johal was entitled to qualified

immunity.

2

AFFIRMED.1

1 Hutchins does not challenge the dismissal of his other claims against Dr. Johal, nor the dismissal of his claims against the other defendants. Thus, he has waived any challenge to the district court’s dismissal of those claims. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e will not consider any claims that were not actually argued in appellant’s opening brief.”).

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